DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the
"Agreement"), is made and entered into this day of , 2007 by and between the CITY OF LAWRENCE,
KANSAS, a municipal corporation duly organized under the laws of the State
of Kansas (the "City"), and CINCO HOMBRES, LLC (the
"Developer").
WHEREAS, the Developer owns the real property legally described in Exhibit A, attached hereto and incorporated herein by reference (the “Property”); and
WHEREAS, the Developer is pursuing a mixed-use redevelopment project that would create a gathering place integrating residential, retail, commercial, entertainment and community uses, activities and buildings for the Property (the “Project”); and
WHEREAS, the Project encompasses both the Property and additional real property the Developer is actively working to acquire (collectively the “Project Area”) legally described in Exhibit B; and
WHEREAS, on December 12, 2006, the City established the 8th and Pennsylvania Overlay District for the Project Area by Ordinance No. 8053 (the “Overlay District Ordinance”); and
WHEREAS, on December 12, 2006, the City considered an Application for Rezoning 4.54 acres within the Property from M-2 and M-3 to CS, which was approved by the City Commission by Ordinance No. 8054 (the “Rezoning Ordinance”); and
WHEREAS, on March 15, 2006, the City considered an Application for Preliminary Plat Approval, which was approved by the Planning Commission (the “Preliminary Plat”); and
WHEREAS, on August 8, 2006, the City considered an Application for Final Plat Approval, which was approved by the City Commission (the “Final Plat”); and
WHEREAS, the City finds that the rehabilitation, conservation or redevelopment of Property is necessary to protect the public health, safety or welfare of the residents of the City; and
WHEREAS, in conjunction with the approval of the Project, the City is requiring the Developer to construct certain public and private infrastructure in and around the Project Area; and
WHEREAS, the City has the authority to create a Neighborhood Revitalization Plan and Program pursuant to K.S.A. 12-17,114 through 12-17,120, and amendments thereto, (the "Act"), for the purpose of financing revitalization related projects in the area which by reason of age, history or architecture or significance should be restored to productive use; and
WHEREAS, City and Developer believe that the creation of a Neighborhood Revitalization Plan and Program for the purpose of financing the Project’s public and private infrastructure through ad valorem rebates is in the best interests of the City, the Developer and the surrounding community; and
WHEREAS, in conjunction with this Agreement, the City will adopt the City of Lawrence Neighborhood Revitalization Plan and Program for the 8th and Pennsylvania District, attached hereto as Exhibit E (the “Plan”).
WHEREAS, under the Act and the Plan, the owners of all property within the proposed revitalization area may apply to the City to request an ad valorem property tax rebate resulting from improvements made within the revitalization area; and
WHEREAS, the Plan requires the parties to enter into a Development Agreement before property owners may receive tax rebates; and
WHEREAS, the Parties are entering into this Agreement to (i) set forth the Developer’s obligations and duties to construct the public and private infrastructure for the Project and (ii) set forth the City’s obligations and duties to assist in the financing of these improvements through the implementation of a Neighborhood Revitalization Plan’s tax rebate program, as required by the Plan.
NOW, THEREFORE, in consideration of the foregoing and in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
RULES OF CONSTRUCTION
Section 1.01. Rules of Construction. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, the following rules of construction apply in construing the provisions of this Agreement:
A. The terms defined in this Article include the plural as well as the singular.
B. All references in this instrument to designated "Articles," "Sections" and other subdivisions are to be the designated Articles, Sections and other subdivisions of this instrument as originally executed.
C. The words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision.
D. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
ARTICLE II
DEVELOPER CONSTRUCTION AND PHASING
Section
2.01. Authorization to Construct. The
Subject
to requisite approvals, the City hereby authorizes the Developer to
construct certain public and private infrastructure in the Project Area
including street improvements, stormwater improvements, parking lot
improvements and alleyway improvements, as more particularly illustrateddescribed
in
Exhibit C and detailed in Exhibit D attached hereto (the “Project
Infrastructure”). As indicated in the exhibits, the Project Infrastructure
shall be completed in phases and in the order specified. In the event
that the Developer desires to alter the order of the phasing, the City
agrees to cooperate with the Developer to redefine the phases to meet both
parties needs. The parties acknowledge that the Project
Infrastructure items, quantities, and unit costs detailed described
in Exhibit DC
is are based on preliminary information, and
that the final determination of the public and private infrastructure that
qualifyies
as Project Infrastructure may be expanded altered at
the time the Developer obtains site plan, public improvement plan and/or
building permit approval as described in Section 2.03 below and may be
further altered at the time the improvements are constructed as described
in Sections 2.04 and 2.06 below.
Section 2.02. Compliance with the Code. Developer shall complete the Project Infrastructure in conformance with all applicable federal, state and building codes, subdivision regulations, the Urban Conservation Overlay District, the “Design Guidelines: 8th & Penn Neighborhood Redevelopment Zone,” the Zoning Ordinance, the Preliminary Plat, the Final Plat, the City of Lawrence Standard Specifications and all other applicable rules and regulations (collectively “Applicable Law and Requirements”).
Section
2.03. Public Improvement Plans and Building Permits. Before commencement of construction on any phase of
the development, development or work on any Project Infrastructure, Developer
shall obtain site plan, public improvement plan and/or building permit
approval, which may be required by the City as to such construction,
development or work. The City shall cooperate with Developer in
regard to all site plan, public improvement plan and/or building permit
applications. Further, the City shall review all site plans, public
improvement plans and/or building permits and shall provide all reasonable
assistance in obtaining and/or issuing such approvals. Notwithstanding
the above acknowledgements, no building permit or plan
approval shall be issued for work in any phase until approvals have been obtained for all work in each preceding phase except
as mutually agreed between the parties as specified in Section 2.01.. All
public improvements must be installed within two (2) years of the issuance of a
building permitplan approval for such public improvements, unless the
City, for good cause, notifies the Developer in writing that the items shall be installed within a shorter time period, or the building
permit plan approval may be void.
Section
2.04. Developer Construction. Subject to
the terms of this Agreement, Developer shall be responsible for all costs of
constructing the Project Infrastructure. The Project Infrastructure will be
constructed in five phases. The Project Infrastructure that will be
constructed with each phase of the Project is generally depicted on the site
plan attached as Exhibit DC.
Section 2.05. Certificate of Occupancy. Developer acknowledges and agrees that a
Certificate of Occupancy will not be granted for any lot, as depicted on Exhibit DC,
within any
phase of the Project until all Project Infrastructure for that phase and all
previous phases is substantially complete and accepted by the City. Notwithstanding
the previous requirement, the City reserves the right to issue a Temporary
Certificate of Occupancy for any lot, as depicted on Exhibit C provided that a contract is in place for
construction of that phase of the Project
Infrastructure
for that phase, the Project Infrastructure work has begun for that phase,
and all required performance, maintenance and statutory bonds for that phase
are in place.
Section 2.06.
Construction Standards.
A. Developer shall ensure the streets and sidewalks in the area where the builder or Developer is working shall remain free and clear of dirt, mud and other debris. If, upon inspection, at any time during the construction period, the Building Official determines the affected area is not properly free and clear of mud and debris, then the Building Official shall provide notice to the Developer.
B. Prior to the issuance of the Certificate of Occupancy and as required by the Code of the City of Lawrence, State Law and the City of Lawrence Standard Specifications, the Developer shall provide escrow fees, letters of credit, and/or a payment, performance maintenance and statutory bonds, in an amount to be determined by the City Engineer to ensure that the public improvements, amenities, and landscaping will be installed.
Section 2.07. Periodic Review. The City and its designees shall have the right to review in a monthly project team meeting the design and construction of the Project Infrastructure to determine that design and construction of the Project Infrastructure is being performed and completed in accordance with this Agreement, the Plan and all Applicable Law and Requirements. If the Project Infrastructure is not being designed or constructed in accordance with this Agreement, the Plan and all applicable law and requirements, after consulting with the Developer, the City shall promptly deliver written notice to the Developer.
Section 2.08. Certificates of Completion.
A. Upon completion of any phase of the Project Infrastructure, the Developer shall submit a report to the City certifying that phase of Project Infrastructure has been completed in accordance with this Agreement and that it is in compliance with all other provisions of the Plan and other applicable law and requirements.
B. The City may conduct an investigation, and if the City determines that a particular phase of the Project Infrastructure has been constructed in accordance with this Agreement, the City shall issue a Certificate of Completion ("Certificate of Completion"). If the City determines that particular phase of the Project Infrastructure has not been completed in accordance with this Agreement, the Plan, or is defective, in need of repair or replacement, or was not property installed; then the City shall not issue a Certificate of Completion and shall, within thirty (30) business days of such finding, specify in writing to Developer the reasons for withholding its certification. If the City fails to notify Developer that there is a problem with the Project Infrastructure within thirty (30) business days of Developer submitting a report certifying that a phase of the Project Infrastructure has been completed, the City shall be deemed to have concluded that the such phase of the Project Infrastructure has been constructed in accordance with this Agreement and shall issue a Certificate of Completion.
C.
Upon
receipt of notification that a Certificate of Completion will not be issued for
the subject Phase(s) of the Project Infrastructure, the Developer shall be
allowed a period of thirty (30) working business days in which to remedy any and all
defects or submit, subject to City staff review and approval, a plan to remedy
the defects.
ARTICLE III
NEIGHBORHOOD REVITALIZATION ACT FINANCING
Section 3.01. Neighborhood Revitalization Plan. Developer’s obligations and duties relating to the Project Infrastructure described herein are contingent on City, County, and the School District’s adoption of the Plan. Under the Plan, the Property is a neighborhood revitalization area and ad valorem tax rebates generated within the Property will be available to finance the Project Infrastructure.
Section 3.02. Neighborhood Revitalization Fund. Following adoption of the Plan, the City shall create a Neighborhood Revitalization Fund to finance the Project Infrastructure. Any increment in ad valorem property taxes resulting from improvements by a property owner to property that is within the boundaries of the Plan will be credited to the Neighborhood Revitalization Fund for the purpose of returning the ad valorem property tax increment to the taxpayer in the form of a tax rebate (the “Tax Rebate”).
Section 3.03. Neighborhood Revitalization Rebate. The Developer must apply, pursuant to KSA
12-17,118, for any Tax Rebate held in the Neighborhood Revitalization Fund
(“NRA Application”). Upon approval of a NRA Application, Developer shall
receive Tax Rebates from the Neighborhood Revitalization Fund until Developer
has been fully reimbursed for the cost of constructing the Project
Infrastructure and
subject to the rebate terms described in the Plan. Once the Developer has been fully
reimbursed for the cost of constructing all Project Infrastructure, Developer or any person eligible for
tax rebates pursuant to Article V of this agreement or the Plan shall be ineligible
for any additional rebates (the “Maximum Rebate Limit”). Tax Rebates paid to
future owners,
taxpayers, tenants, assignees, oflessees, successors in interest, or creditors of the Property
shall be considered reimbursement to Developer for purposes of calculating if
Developer has reached the Maximum Rebate Limit. The parties acknowledge that the estimated cost of the Project
Infrastructure described in Exhibit C is based on preliminary
information, and that the final cost for such Project Infrastructure shall be
determined through approval of Certificate of Expenditures (as described
below).
Section 3.04. Tax Rebate Covenant. At the Developer's request, the City will acknowledge and consent to the filing of record against the Property a tax rebate agreement and covenant running with the land ("Tax Rebate Covenant") that will irrevocably assign any interest in Tax Rebates future owners of the Property may have to Developer or Developer's assigns. Upon Developer filing of record the Tax Rebate Covenant, the City shall pay any Tax Rebates due any future Property owner(s) to Developer or Developer’s assigns. The Tax Rebate Covenant will be in substantially the form as shown in Exhibit F.
At the Developer’s request, the City shall consent
to the Developer filing of record a covenant running with the land that
provides that any future Property owners waive their interest in Tax Rebates
they may be entitled (the “Tax Rebate Covenant”). Upon Developer filing of
record the Tax Rebate Covenant, the City shall pay Tax Rebates due any future
Property owner(s) to Developer or Rebate Assignee, as described below, of
Developer. The Tax Rebate Covenant will be in substantially the form as shown
in Exhibit F.
Section 3.05. Certification of Expenditures. Developer shall certify all costs and expenditures to be made in connection with the Project Infrastructure in accordance with the following:
A. The Developer shall submit to the City a Certification of Expenditure setting forth the amount for which certification is sought and identification of the relevant Project Infrastructure.
B.
The Certification of Expenditure shall be
accompanied by such bills, contracts,
invoices, lien waivers and other evidence as the City shall reasonably require
to document the eligibility for rebates.
C. The City reserves the right to have its engineer or other agents or employees inspect all work in respect of which a Certification of Expenditure is submitted, to examine the Developer’s and other's records relating to all expenses related to the Project Infrastructure to be paid, and to obtain from such parties such other information as is reasonably necessary for the City to evaluate compliance with the terms hereof.
D.
The City shall have 30 calendarbusiness days after
receipt of any Certification of Expenditure to review and respond by written
notice to the Developer. If the submitted documentation demonstrates that: (1)
the Certification of Expenditure relates to the Project Infrastructure; (2) the
expense was incurred; (3) Developer is not in material default under this Agreement; and (4) there is no fraud on
the part of the Developer, then the City shall approve the Certification of Expenditure. If the City reasonably
disapproves of the Certification of Expenditure, the City shall notify the
Developer in writing of the reason for such disapproval within such 30-day
period. If the City fails to respond to Developer’s request within such 30-day
period, the City shall be deemed to have approved such request.
E. Upon approval of a Certificate of Expenditure, Developer shall receive tax rebates up to the amount approved in the Certificate of Expenditure.
ARTICLE IV
DEVELOPER OF RECORD
Section 4.01.
Developer Designation. Developer
currently owns the Property, and is working to acquire the remaining property
within the Project Area, so that Developer may revitalize the entire Project
Area in a manner consistent with the Overlay District Ordinance and Design
Guidelines. Developer is hereby designated the exclusive
Developer of Record for the Project Area for a period of 5 years from the date
of publication of the Ordinance adopting this Agreement and the Plan. If any
owner of property (except City, Developer, or an assignee of Developer) within
the Project Area files an application for a building permit, development
approval or a Neighborhood Revitalization Application, the City shall give
notice thereof to the Developer within twenty five (20)(5)
business days of
the date of the application. No action shall be taken on such application
until ten (10) business days
have elapsed from the date notice of the application is given to the
Developer.
ARTICLE V
SALE OF PROPERTY AND DEVELOPER ASSIGNMENT
Section 5.01. Sale or Disposition of Property and Assignment.
A. Sale or Lease. The Developer may sell, transfer, convey, lease or otherwise dispose of real property owned by Developer.
B. Assignment of Obligations. This Agreement and the rights, duties and obligations hereunder may be assigned by the Developer and assumed by Developer’s assigns.
C. Partial Assignment of Rebate Rights.
1. At the Developer’s sole discretion, Developer may assign a limited right to Tax Rebates (“Rebate Assignment”) to Taxpayers, as defined by the Act, tenants, successors in interest, creditors or subsequent landowners of the Property (“Rebate Assignees”).
2. All Rebate Assignments shall be made in the following manner:
a. An
Assignment Agreement (the “Assignment Agreement”) shall be in
form and content reasonably acceptable to the City and shall be recorded and delivered to the City .Clerk.
b. The Assignment Agreement shall contain instructions to the City regarding the type of Project Infrastructure Cost that the Rebate Assignee is entitled to, the timing and sequencing of the Rebate as it relates to the timing and sequencing of Rebate due to the Developer, and the amount of the Rebate being granted to the Rebate Assignee.
c. To be valid and for the City to provide rebates from the Neighborhood Revitalization ,Fund, the Assignment
Agreement shall be signed by:
i. The Developer; and
ii.
The Rebate Assignee(s); and
iii.The City
who shall execute the Assignment Agreement at the direction of the Developer.
3. Once a valid Assignment Agreement is executed, the City and the Developer shall take such further steps as may be reasonably necessary to comply with the intent of this section.
4. Any sale, disposition or assignment of property including any tax rebates are limited by the Maximum Rebate Limit described in Article III and the Plan.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Default. This Agreement shall be in default if there is a failure by either party to observe and perform any covenant, condition or agreement required of such party under this Agreement for a period of sixty (60) days after written notice of such default has been given to the defaulting party by the non-defaulting party during which time such default is neither cured by the defaulting party nor waived in writing by the non-defaulting party (“Event of Default”), provided that, the defaulting party shall not be in default if the failure stated in the notice cannot be corrected within said sixty (60) day period and the corrective action is instituted within the sixty (60) day period and diligently pursued to completion.
Section 6.02. Remedies on Default.
A. Whenever any Event of Default by Developer shall have occurred and be continuing, the City may take any one or more of the following remedial steps: (i) Refuse to issue any further Certification of Expenditures and/or Tax Rebates; or (ii) Terminate this Agreement. Notwithstanding the foregoing, the City shall be obligated to provide Tax Rebates to Developer for all Project Infrastructure expenditures incurred by Developer up to the date of refusal to issue any further Certification of Expenditures or termination of this Agreement.
B. Whenever any Event of Default by City shall have occurred, Developer may take any one or more of the following remedial steps (i) Terminate this Agreement, or (ii) have available all remedies at law and in equity.
Section 6.03. Legal Actions. Any legal actions related to or arising out of this Agreement must be instituted in the District Court of Douglas County, Kansas or, if federal jurisdiction exists, in the Federal District Court in the District of Kansas.
Section 6.04. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
Section 6.05. Inaction Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any action or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.
Section 6.06. Enforced Delay; Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where party seeking the extension has acted diligently and delays or defaults are due to events beyond the reasonable control of the party such as but not limited to: default of other party; war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; market conditions; quarantine restrictions; freight embargoes; lack of transportation; unusually severe weather; or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Times of performance under this Agreement may also be extended in writing by the mutual agreement of City and the Developer.
ARTICLE VII
GENERAL PROVISIONS
Section 7.01. Time of Essence. Time is of the essence of this Agreement. The City and Developer will make every reasonable effort to expedite the subject matters hereof and acknowledge that the successful performance of this Agreement requires their continued cooperation.
Section 7.02. Amendment. This Agreement, and any exhibits attached hereto, may be amended only by the mutual consent of the parties, upon official action of the City's governing body approving said amendment, and by the execution of said amendment by the Parties or their successors in interest.
Section 7.03. Immunity of Officers, Employees and Members of the City. No personal recourse shall be had for the creation of a Neighborhood Revitalization Plan or Fund, for the payment of any ad valorem property tax rebates or for any claim based thereon or upon any representation, obligation, covenant or agreement in this Agreement against any past, present or future officer, member, employee or agent of the City, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and any liability of any such officers, members, directors, employees or agents is hereby expressly waived and released as a condition of and consideration for the execution of this Agreement. Furthermore, no past, present or future officer, member, employee or agent of the City shall be personally liable to the Developer, or any successor in interest, for any default or breach by the City.
Section 7.04. Right of Access. For the purposes of assuring compliance with this Agreement, representatives of the City shall have the right of access to the Property, without charges or fees, at normal construction hours during the period of construction for purposes related to this Agreement, including, but not limited to, the inspection of the work being performed in constructing the Project Infrastructure. Such representatives of the City shall carry proper identification, and shall not interfere with the construction activity.
Section 7.05. No Other Agreement. Except as otherwise expressly provided herein, this Agreement and all documents incorporated herein by reference supersedes all prior agreements, negotiations and discussions, both written and oral, relative to the subject matter of this Agreement and is a full integration of the agreement of the parties.
Section 7.06. Severability. If any provision, covenant, agreement or portion of this Agreement, or its application to any person, entity or property, is held invalid or unenforceable in whole or in part, this Agreement shall be deemed amended to delete or modify, in whole or in part, if necessary, the invalid or unenforceable provision or provisions, or portions thereof, and to alter the balance of this Agreement in order to render the same valid and enforceable. In no such event shall the validity or enforceability of the remaining valid portions hereof be affected.
Section 7.07. Amendment to Carry Out Intent. If any provision, covenant, agreement or portion of this Agreement, or its application to any person, entity or property, is held invalid, the parties shall take such reasonable measures including, but not limited to, reasonable amendment of this Agreement or the Plan to cure such invalidity where the invalidity contradicts the clear intent of the parties in entering into this Agreement.
Section 7.08. Kansas Law. This Agreement shall be construed in accordance with the laws of the State of Kansas.
Section 7.09. Duration. The duration of the agreement shall be until such time that the Developer’s maximum rebate limits pursuant to the Plan and this Agreement have been reached, unless terminated as herein provided.
Section 7.10. Notice. All notices and requests required pursuant to this Agreement shall be in writing and shall be sent as follows:
To the Developer:
Cinco Hombres, LLC
Attn: Roger Harris
730 New Hampshire Street, Suite 222
Lawrence, KS 66044
With copies to:
Korb W. Maxwell, Esq.
Polsinelli Shalton Welte Suelthaus PC
6201 College Boulevard, Suite 500
Overland Park, Kansas 66211
To the City:
David Corliss, City Manager City of Lawrence
P.O. Box 708
6 East 6th
Lawrence, KS 66044
With copies to:
Ed Mullins, Director of Finance
City of Lawrence
P.O. Box 708
6 East 6th
Lawrence, KS 66044
Toni Ramirez Wheeler, Interim Director
of Legal Services
City of Lawrence
P.O. Box 708
6 East 6th
Lawrence, KS 66044
or at such other addresses as the parties may indicate in writing to the other either by personal delivery, courier, or by registered mail, return receipt requested, with proof of delivery thereof. Mailed notices shall be deemed effective on the third day after mailing; all other notices shall be effective when delivered.
Section 7.11. Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same agreement.
Section 7.12. Consent or Approval. Except as otherwise provided in this Agreement, whenever consent or approval of either party is required, such consent or approval shall not be unreasonably withheld.
Section 7.13. Survivorship. Notwithstanding the termination of this Agreement, Developer’s obligations with respect to any terms and conditions of this Agreement which by their nature should survive termination, shall survive the termination of this Agreement.
Section 7.14.
Incorporation of Exhibits. The
Exhibits attached hereto and incorporated herein by reference are a part of
this Agreement to the same extent as if fully set forth herein.
Section 7.15. Indemnity and Release. Devloper covenants and agrees, at its expense, to indemnify and hold the City and its repective members, officers, employees, and agents harmless from and against any loss, liabilty, damage or expense arising out of any and all claims, demands, expenses, penalties, fines, taxes of any character or nature arising from the Plan, this Agreement or the Project Infrastructure, including but not limited to, claims for loss or damage to any property or injury to or death of any person arising out of Developer’s obligations under this Agreement. If any action or proceeding is brought against the City or its respective members, directors, officers, employees or agents by reason of any such claim or demand for which Developer is obligated to defend hereunder, upon notice from the City, Developer covenants to defend such action or proceeding on demand of the City or its respective members, directors, officers, employee or agants. Notwithstanding the forgoing, neither the City nor its respective members, directors, officers, employees or agents shall be indemnified against liablity for damage arising out of bodily injury to persons or damage to property caused by its own act or omision or the acts or omisions of its own members, directors, officers, employees or agents.
ARTICLE VIII
REPRENTATIONS OF THE CITY AND THE DEVELOPER
Section 8.01. Representations of the City. The City makes the following representations and warranties, which are true and correct on the date hereof:
A. Due Authority. The City has full power and authority, under current applicable law, to execute and deliver and perform the terms and obligations of this Agreement, and all of the foregoing have been or will be duly and validly authorized and approved by all necessary City proceedings, findings and actions. The City also acknowledges that this Agreement complies with the Kansas Cash-Basis law, K.S.A. 10-1101 et seq. Accordingly, this Agreement constitutes the legal valid and binding obligation of the City, enforceable in accordance with its terms.
B. No Defaults or Violation of Law. The execution and delivery of this Agreement, the consummation of the transactions contemplated thereby, and the fulfillment of the terms and conditions hereof do not and will not conflict with or result in a breach of any of the terms or conditions of any agreement or instrument to which the City is now a party, and do not and will not constitute a default under any of the foregoing.
Section 8.02. Representations of the Developer. Developer makes the following representations and warranties, which representations and warranties are true and correct on the date hereof:
A. Due Authority. The Developer has all necessary power and authority to execute and deliver and perform the terms and obligations of this Agreement and to execute and deliver the documents required of the Developer herein, and such execution and delivery has been duly and validly authorized and approved by all necessary proceedings. Accordingly, this Agreement constitutes the legal, valid and binding obligation of the Developer, enforceable in accordance with its terms.
B. No Defaults or Violation of Law. The execution and delivery of this Agreement, the consummation of the transactions contemplated thereby, and the fulfillment of the terms and conditions hereof do not and will not conflict with or result in a breach of any of the terms or conditions of any corporate or organizational restriction or of any agreement or instrument to which it is now a party, and do not and will not constitute a default under any of the foregoing.
ARTICLE IX
EFFECTIVE DATE
Section 9.01. Effective Date. This Agreement shall be become effective upon the later of (i) both parties executing this Agreement or (ii) the City Council passing an ordinance adopting the 8th and Pennsylvania District Neighborhood Revitalization Plan, but only then if other taxing entities that must consent to the Plan’s adoption (such as the local school district or Douglas County) have consented to the Plan through an interlocal agreement between the City and taxing jurisdictions.
IN WITNESS WHEREOF, the City and the Developer have duly executed this Agreement pursuant to all requisite authorizations as of the date first above written.
CITY OF LAWRENCE, KANSAS
_______________________________
Mike Amyx, Mayor
ATTEST:
____________________________
Frank Reeb, City Clerk
APPROVED AS TO FORM:
___________________________
Toni Ramirez Wheeler
Interim Director of Legal Services
Cinco Hombres, LLC
___________________, Manager ATTEST:
By:
Its:
ACKNOWLEDGEMENT
